Introduction

What is contempt of court?

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1.1Contempt of court promotes the fair, expeditious and cost effective administration of justice. Courts have developed today’s contempt laws over centuries to prevent or punish conduct seen as interfering with the administration of justice. Over recent years, however, there have been significant statutory inroads into contempt.

Contempt of court defined and described

1.2For the purposes of our review, it is convenient to identify different types of contempt. The principal types of conduct are contempt in the face of the court, contempt outside the court (which includes publication contempt), contempt by jurors, contempt by disobeying court orders and contempt by scandalising the court.1

1.3Contempt in the face of the court covers conduct that disrupts or is likely to disrupt court proceedings, such as interrupting the proceedings by words or actions, insulting a judicial officer, juror or lawyer or, in the case of a witness, refusing, without justification, to be sworn or answer questions. Much of this form of contempt is now in statutory form.2

1.4Contempt outside the court covers publication contempt, but also other conduct that interferes or is likely to interfere with the fair administration of justice, such as actions interfering with or abusing court processes, including interfering with parties, judges, juries or witnesses. Publication contempt covers publications that are prejudicial to a fair hearing or publications that prejudge issues in pending proceedings.3

1.5Contempt by jurors covers matters such as refusal to be sworn or give a verdict or accessing information about a trial through private research or discussing the trial or jury deliberations with outside parties.

1.6Contempt by disobeying court judgments or orders and breaching undertakings given to a court is self-explanatory. Whereas the other types of contempt are viewed as criminal contempts, historically this type has generally been classified as civil contempt. The Supreme Court has, however, decided there is no relevant distinction between imprisonment for criminal and civil contempts, and the protections for defendants in criminal contempt proceedings under the New Zealand Bill of Rights Act 1990 (NZBORA) should apply equally to defendants in civil contempt proceedings.4 Aspects of this contempt are now also in statutory form.5

1.7Scandalising the court covers conduct that brings a court into disrepute, lowers a judge’s authority or interferes with the lawful process of the court, such as “scurrilous” abuse of the court, attacks on the personal character of a judge and allegations of bias or partiality on the part of a judge or court.

1.8New Zealand adopted contempt of court, originally part of the common law of England, by virtue of the English Laws Act 1858. The English judges who created the common law of contempt relied on the inherent jurisdiction of the superior courts to do so. The High Court has an inherent jurisdiction to deal with matters that are necessary to administer the laws of New Zealand.6

1.9In New Zealand the common law authority of the High Court under its inherent jurisdiction to punish for contempt is preserved by:

(a) section 12 of the Senior Courts Act 2016, which confirms that the inherent jurisdiction of the English High Court is retained by the New Zealand High Court;7

(b) section 9 of the Crimes Act 1961, which provides:

No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom: provided that

(a) nothing in this section shall limit or affect the power or authority of the House of Representatives or of any court to punish for contempt, …

and

(c) section 165(3) of the Senior Courts Act, which clarifies an express contempt of court provision by providing:

Nothing in this section limits or affects any power or authority of a court to punish any person for contempt of court in any case to which this section does not apply.

1.10Section 9 of the Crimes Act is an important provision because it recognises that the “power or authority of any court” to punish for contempt, including the High Court’s common law authority under its inherent jurisdiction, is an exception to the rule that all criminal offences in New Zealand are statutory. The common law inherent jurisdiction has survived the codification of the criminal law and the abolition of common law offences.8

1.11In this context it is important to recognise the distinctions between the substantive jurisdictions and ancillary or procedural powers of the different courts:

(a) The High Court has an inherent substantive jurisdiction to hear and determine a range of matters, including contempt of court.9

(b) Courts with substantive jurisdiction conferred solely by statute, such as the District Court, do not have an inherent jurisdiction but do have inherent powers that are incidental or ancillary to their statutory jurisdictions.10

(c) The Supreme Court and the Court of Appeal, which have statutory jurisdictions, do not have any inherent jurisdiction as such. Their contempt jurisdiction is therefore limited to any relevant statutory powers such as those conferred by section 165 of the Senior Courts Act or, possibly, to exercising the powers of High Court Judges in their capacities as judges of the High Court.11 With the repeal of section 35(4) of the Supreme Court Act 2003, which provided that the Supreme Court had the same power and authority as the High Court to punish for contempt, the Supreme Court itself no longer has that express power and authority. We recommend in chapter 7 that any doubt about the contempt powers of the Supreme Court and the Court of Appeal should be avoided by the enactment of new provisions making it clear that, at least in respect of contempt of court, both appellate courts have the same authority as the High Court has under its inherent jurisdiction.12

1.12The authority of the High Court to commit for contempt is exercised under the inherent jurisdiction of that Court and under any statutory powers conferred expressly or by necessary implication on that court.13

1.13The power of the District Court to commit for contempt is incidental or ancillary to its substantive statutory jurisdiction either because the power is conferred expressly by statute,14 or because it is necessarily implied to enable the Court to discharge its statutory jurisdiction effectively. As the Supreme Court put it in Zaoui v Attorney-General:15

Courts which do not possess an inherent substantive jurisdiction (as is the case where their substantive powers are entirely statutory) nevertheless have inherent or implied procedural powers necessary to enable them to give effect to their statutory substantive jurisdiction.

1.14To avoid confusion between the “authority” of the High Court under its inherent jurisdiction and the “inherent” or “implied” powers of statutory courts under their statutory jurisdictions,16 we propose to describe the common law contempt authority of the High Court as its “authority under its inherent jurisdiction” and the “inherent” or “implied” ancillary power of the District Court as an “implied power”. In our view this reflects the differences between the authority or power of the two Courts and recognises the more limited nature of the implied powers under the statutory jurisdiction of the District Court.17

1.15In some areas of contempt (publication contempt, common law contempt by jurors, and scandalising the court) the District Court has no authority or power at all, express or implied. To address these areas of contempt, the High Court’s inherent jurisdiction extends to upholding the authority of statutory courts and tribunals.18 Under its inherent jurisdiction, subject to any qualification by statute or statutory rule, the High Court has authority to punish for contempt of a lower court’s processes in order to enable that court to act effectively as a court.19

1.16In recent years the High Court in New Zealand has exercised its common law authority under its inherent jurisdiction to hold persons in contempt of court in cases involving:

approaches by a Radio New Zealand reporter to jurors from the trial of David Tamihere for the murder of two Swedish tourists after the discovery of the body of one of the tourists nearly a year after the trial;20

newspaper reports of the previous convictions and bail status of a person charged with further offences while on bail, which infringed the fair trial rights of the person;21

statements in a radio interview by a plaintiff in a civil proceeding, criticising the defendant;22

attempts by a Member of Parliament, TV3 and Radio New Zealand to influence the outcome of a case before the Family Court by criticising the Court’s decision and attempts by the Member of Parliament to persuade a party to give up the case;23

non-compliance with a High Court interim injunction requiring a litigant in person not to publish certain allegations against a chartered accountant and his firm;25

breaches of a pre-trial High Court suppression order by publication of suppressed material on a website by a person who was not a party in the criminal proceeding;26

publishing hyperlinks to a spreadsheet on an overseas website from which EQC claimants could download information in breach of a High Court injunction prohibiting disclosure of the spreadsheet information;27

breach by a blogger of undertakings given to the District Court to take down posts on his website;28

failures by company directors and former directors to comply with court orders requiring company documents to be delivered up to liquidators;29 and

an intemperate outburst by a member of the public when a jury was delivering its verdicts.30

1.17Recent examples of High Court cases where persons have been held not to be in contempt are:

newspaper publication of material sympathetic to a defendant, published before his retrial;31

a media and billboard campaign by a supermarket chain criticising another supermarket chain for appealing against a High Court decision overturning a local authority planning decision;32 and

publication of newspaper articles relating to the Police search of training camps in the Urewera and the seizure of military-style weapons in breach of District Court suppression orders made at bail hearings and the Crimes Act provision relating to intercepted communications.33

1.18New Zealand has retained the common law of contempt of court, but over time it has also been replaced, modified or supplemented in several significant respects by various statutory provisions. The replacement provisions are contained in:

(a) The Crimes Act with administration of justice offences such as perjury,34 making false oaths,35 false statements or declarations,36 fabricating evidence,37 conspiring to bring false accusations,38 conspiring to defeat the course of justice39 and corrupting juries and witnesses.40

(b) The Criminal Procedure Act 2011 with offences for breaches of name and evidence suppression orders.41

(c) Particular statutes with specific provisions making it an offence to breach or fail to comply with particular types of court orders made under those statutes.42

1.19The statutory provisions modifying or supplementing the common law are:

(a) Specific provisions replacing in part the High Court’s common law power to commit for contempt in the face of the court.43

(b) Specific provisions conferring limited jurisdiction on other courts, particularly the District Court, to commit for contempt in the face of the court and disobeying court judgments or orders.44

(c) Specific provisions in Court Rules relating to the procedures for the enforcement of court judgments and orders.45

1.20As a result of the enactment of these various statutory provisions, the law of contempt of court in New Zealand is now a mix of court decisions based on the common law inherent jurisdiction and on legislation, including powers implied under that legislation.

1.21The principal distinguishing feature of the contempt jurisdiction is that it is summary. This means contempt matters are dealt with by a judge alone, rather than a judge and jury, and sometimes by the judge immediately on the spot. The summary procedure allows prompt intervention because judges need to be able to control their courtrooms. Ordinary criminal processes were historically regarded as too slow and cumbersome to provide adequate protection for the administration of justice. Describing the summary procedure, McGrath J noted:46

[6] Under the summary procedure, there is no preliminary inquiry, committal procedure or requirement for an indictment. Historically the judge could take the initiative in the proceeding, determine the grounds of complaint, identify witnesses and inquire into what they had to say. The judge would then determine guilt or innocence and the sentence to be imposed. More recently, when out of court conduct is involved, contempt proceedings have been brought by a law officer, usually the Solicitor-General.

[7] Over the years, the summary process has come to include the safeguards normally available to accused persons to protect their rights with the exception of the right to trial by jury.

1.22Punitive measures for contempt of court were typically a fine or a sentence of imprisonment. At common law, there was no limit on the term of imprisonment that a judge might impose. It could be for any finite period determined by the judge or for an indeterminate period, ending only when the person held to be in contempt apologised and purged their contempt by complying with the relevant order of the court.

1.23At common law there was no right of appeal in cases of criminal contempt, but that omission was rectified by legislative amendment.47

1.24Currently, because contempt is summary, the maximum penalty that may be imposed must be less than two years’ imprisonment.48 A person charged with an offence punishable by imprisonment of two years or more has a right under NZBORA to a jury trial.49

1.25Traditionally, forms of contempt were either criminal or civil, depending on their purpose. Conduct requiring punishment for undermining the administration of justice was criminal contempt, while civil contempt was reserved for situations involving enforcement of compliance with a court order or judgment in a civil action. As discussed in chapter 7, that distinction is less relevant today.

1.26Unlike other conduct resulting in criminal penalties, criminal contempt cases receive a civil file number in the court system because they are commenced by way of an originating or interlocutory application. There is no formal charge or plea, and convictions are not recorded on the offender’s criminal record. Proceedings are generally brought by Crown counsel in the name of the Solicitor-General, rather than by the Police Prosecution Service. For some forms of contempt, the Court may also act on its own initiative.

3Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL). This decision was challenged in the European Court of Human Rights, which found the United Kingdom law of contempt of court as it was applied in that case to be a breach of the right to freedom of expression affirmed in Article 10 of the European Convention on Human Rights: Sunday Times v United Kingdom (1979) 2 EHRR 245 (ECHR). The Contempt of Court Act 1981 (UK) was enacted subsequent to that decision.

27Solicitor-General of New Zealand v Krieger [2014] NZHC 172 at [49]. Mr Krieger, by providing hyperlinks to the overseas websites, facilitated disclosure of the spreadsheet in breach of the court order. The Court considered that it did not matter that the websites were overseas, as the information was disclosed in New Zealand when EQC claimants downloaded it.